Transparency and disclosure: Statement of the CMA s policy and approach

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1 Transparency and disclosure: Statement of the CMA s policy and approach January 2014 CMA6

2 Crown copyright 2014 You may reuse this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit or write to the Information Policy Team, The National Archives, Kew, Richmond, Surrey, TW9 4DU, or Any enquiries regarding this publication should be sent to us at: Any enquiries regarding this publication should be sent to us at: Policy, Precedent and Procedures Unit, Competition and Markets Authority, Victoria House, 37 Southampton Row, London, WC1B 4AD or by to This publication is also available at:

3 Contents Page 1. Introduction CMA aims in respect of transparency, information requests, and handling of information Transparency during the course of a case Obtaining and using information Complaints and accountability Disclosure to UK public authorities Cooperation with overseas public authorities Freedom of information and data protection ANNEXES A. Key changes to existing guidance B. Status of OFT and CC guidance documents... 43

4 1. Introduction 1.1 The Enterprise and Regulatory Reform Act 2013 (ERRA13) established the Competition and Markets Authority (CMA) as the UK s economy-wide competition authority responsible for ensuring that competition and markets work well for consumers. On 1 April 2014, the functions of the Competition Commission (CC) and the Office of Fair Trading (OFT) were transferred to the CMA and those bodies abolished. The CMA s primary duty is to promote competition, both within and outside the UK, for the benefit of consumers. 1.2 This Statement constitutes an umbrella document guidance which aims to set out the CMA s policy and approach to transparency and disclosure at a high level. In brief, this Statement provides an overview of: the aims of the CMA in relation to transparency, information requests and handling of information the CMA s approach to transparency when involved in cases and projects 1 the CMA s approach to gathering information from and disclosing information to parties, and the CMA s approach when considering whether to disclose information to other UK or overseas public authorities. It also notes the CMA s obligations regarding the protection and disclosure of information under the Enterprise Act 2002 (EA02), Competition Act 1998 (CA98), Freedom of Information Act 2000 (FOIA) and the Data Protection Act 1998 (DPA98). 1.3 This Statement applies to the CMA s cases, except where stated to the contrary, in particular such work under the CA98, EA02 and consumer enforcement actions. 1.4 More detailed guidance on transparency and disclosure as it relates to specific areas of the CMA s work, including the applicable legal provisions, is available in other CMA documents, including: 2 Mergers: Guidance on the CMA s jurisdiction and procedure (CMA2) 1 2 For ease of reference, references to a case or cases in the remainder of this document also cover the CMA s projects. In the event of apparent conflict between this guidance and the detailed guidance, the latter prevails. 1 CMA6

5 Market Studies and Market Investigations: Supplemental guidance on the CMA s approach (CMA3) Consumer Protection: Guidance on the CMA s approach to use of its consumer powers (CMA7) Competition Act 1998: Guidance on the CMA's investigation procedures in Competition Act 1998 cases (CMA8) Applications for leniency and no-action in cartel cases (OFT1495), and Chairman s Guidance on Disclosure of Information in Merger Inquiries, Market Investigations and Reviews of Undertakings and Orders accepted or made under the Enterprise Act 2002 and Fair Trading Act 1973 (CC7 (revised)) Amendments to the Chairman s Guidance on Disclosure of Information in Merger Inquiries, Market Investigations and Reviews of Undertakings and Orders accepted or made under the Enterprise Act 2002 and Fair Trading Act 1973 (CC7 (revised)) as a result of the changes that are outlined in this Statement are listed in Annexe A to this document. 1.6 This Statement reflects the views of the CMA as at 1 April 2014 and may be revised from time to time to reflect changes in best practice, legislation and the results of experience, legal judgments and research. This Statement may in due course be supplemented, revised or replaced. The CMA s webpages will always display the latest version of the Statement. 1.7 Although it covers most of the points likely to be of immediate concern to businesses and their advisers, this Statement makes no claim to be comprehensive. It cannot, therefore, be seen as a substitute for the law itself, nor can it be cited as a definitive interpretation of the law. Anyone in any doubt about whether they may be affected by the points covered here should consider seeking legal advice. 1.8 The CMA will apply this Statement flexibly. This means that the CMA will have regard to the Statement when dealing with transparency and disclosure but that, when the facts of an individual case reasonably justify it, the CMA may adopt a different approach. 3 These documents are available in full on The webpages also contains a complete list of the CMA s guidance documents. 2 CMA6

6 2. CMA aims in respect of transparency, information requests, and handling of information Overview 2.1 The CMA is committed to its aims to be open and transparent about the work it does and how it engages with those directly involved in or affected by its work, while seeking to maintain (as appropriate) the confidentiality of information it obtains in the exercise of its functions. It also aims to be reasonable when requesting and handling information, and to protect confidential information in a manner that is appropriate in the circumstances of the case. Furthermore, the CMA aims to carry out its cases with appropriate efficiency and timeliness, including by having due regard to published timetables and statutory deadlines. 2.2 In regard to these aims, the CMA recognises the desirability of taking a consistent approach both when exercising the same functions and across functions. However, for some of the CMA s functions, the procedures and approach the CMA takes in an individual case are influenced or determined by legislation. Similarly the circumstances of a case may determine the CMA s approach in the particular instance. 4 Transparency 2.3 Transparency is important for a number of reasons. Transparency is a means of achieving due process and ensuring that parties directly involved in a case are treated fairly. It also enables other interested persons to engage effectively with the CMA and to contribute to its work. Ensuring due process for those directly involved in the CMA s work and effectively engaging with other interested persons in turn improves the effectiveness and efficiency of the CMA s work, and the quality and robustness of its decision-making. 2.4 Providing clear information about its cases also enhances the visibility of the CMA s work, thereby increasing its impact, predictability and accountability. Transparency further fosters closer cooperation with overseas competition and consumer authorities. 4 In particular, the CMA acknowledges that in criminal cartel and criminal consumer investigations, the public interest may weigh in favour of maintaining confidentiality of information rather than disclosure. Where there are parallel criminal and civil cartel investigations, the approach taken in relation to the CA98 investigation will be informed by the approach taken in the criminal case. 3 CMA6

7 2.5 The CMA aims to achieve transparency in its work by: ensuring the parties directly involved and other interested persons (if appropriate) are informed during the course of a case of key developments, for example by notifying them of the formal commencement of a case (unless this may prejudice the investigation), sharing developing thinking with relevant parties at appropriate stages of a case, providing indicative timetables, and identifying contacts and decision makers engaging with the parties directly involved at an early stage of its cases (unless doing so may prejudice the case) ensuring that at appropriate times during the case parties directly involved and other interested persons have an opportunity to raise their concerns and provide their views regarding a particular case placing announcements on when a formal case has been opened (unless doing so may prejudice the case or would otherwise be inappropriate), and placing announcements on when a case, in relation to which a formal case opening announcement has been issued, reaches particular significant milestones and when it is completed. Information requests 2.6 The CMA s cases require it to make evidence based decisions. The receipt of information is therefore important to the quality and effectiveness of the CMA s work. When formulating and determining the scope of information requests, determining to whom to address information requests, and determining the date by which the information should be provided, the CMA will aim to be fair and reasonable in its approach and will seek to avoid imposing unnecessary burdens across all of its work. In particular it will be receptive to parties concerns about the burdens placed on them by the CMA s requests while seeking to balance those concerns with the efficient and effective operation of the CMA. Further information relating to information requests in respect of many of its functions is provided in chapter 4. Handling Information 2.7 The CMA s commitment to transparency is provided in the context of the CMA s duty under the ERRA13 to promote competition for the benefit of consumers. The CMA is also under certain statutory obligations to protect confidential information. These obligations apply to the confidentiality of 4 CMA6

8 information relating to individuals and businesses that comes to the CMA in connection with the exercise of its statutory functions. Restrictions on the further disclosure of information apply to the CMA and to other persons to whom it makes disclosure. In particular a person making an unlawful disclosure commits a criminal offence. 2.8 Under the EA02 such specified information 5 may be disclosed in certain specific circumstances, generally referred to as information gateways. When handling information and considering the appropriateness of making a disclosure, the CMA will be mindful of the need to protect confidential information from unlawful disclosure. 2.9 Further information about these statutory provisions of the EA02 and the DPA98, including the relevant considerations for the CMA before making a disclosure, is to be found in chapters 4, 6, 7 and 8. Further information about the disclosure of information in the course of cases is available in chapter 4. Further information about the disclosure of information to other public bodies (UK and overseas) is provided in chapters 6 and 7 respectively. 5 As defined under sections 237 and 238 of the EA02. 5 CMA6

9 3. Transparency during the course of a case Preparatory work 3.1 Before formally opening a case, the CMA typically carries out some preparatory work. For example, it may assess market intelligence and analyse trends in aggregated complaints data. The CMA may also engage with the parties directly involved, 6 for example through pre-notification discussions with merging parties in merger cases or informal preliminary inquiries in markets 7 and CA98 cases. The CMA may also engage with other interested persons, for example through discussions with complainants or other businesses in the market concerned, when it would be helpful to the CMA s case. This enables the CMA to gather information which will inform its early thinking and, where relevant, the decision as to whether to formally open a case. It also enables the parties directly involved to understand at an early stage the potential competition or consumer concerns under consideration. 3.2 The CMA will not engage with parties directly involved or other interested persons before the formal case opening decision where doing so may prejudice the investigation, for example in CA98 cases prior to unannounced site visits or witness interviews. This is particularly relevant, for example, in the case of suspected cartels, where the CMA is unlikely to contact the persons under investigation until after a formal investigation has been opened, unless they are already cooperating as leniency applicants or if the party directly involved is an informant. Announcing a formal case opening decision 3.3 For the purposes of this Statement, cases are formally opened when: 6 7 For the purposes of this document, parties directly involved does not include complainants. In CA98 investigations, the CMA may provide Formal Complainants with access to the same information as available to the parties directly involved at the outset of its formal investigation. Refer to the guidance on Involving third parties in Competition Act investigations (OFT451) and Competition Act 1998: Guidance on the CMA's investigation procedures in Competition Act 1998 cases (CMA8) for further guidance on the involvement of third parties in CA98 investigations, including guidance on when complainants may be given Formal Complainant status. For example, using its general review functions the CMA might engage with market participants prior to any launch of a market study (see Market Studies and Market Investigation: Supplemental guidance on the CMA s approach (CMA3)). 6 CMA6

10 in Phase 1 merger cases, the CMA confirms by notice to the merging parties that the merger notice is satisfactory 8 or (where the CMA is not dealing with a merger notice) that it otherwise has sufficient information to enable it to begin its investigation 9 in Phase 2 merger cases, the CMA makes a merger reference 10 in relation to market studies, the CMA serves notice of the launch of a market study 11 in relation to market investigations, the CMA makes a market investigation reference 12 in relation to super complaints, the CMA receives the super complaint 13 in CA98 investigations, the CMA decides that the legal test in the CA98 14 has been met (thus allowing the CMA to use its formal investigation powers) and that the case falls within its prioritisation principles in criminal cartel investigations, the CMA decides that there are reasonable 15 grounds for suspecting that a criminal cartel offence has been committed and that the case falls within its prioritisation principles in consumer enforcement actions, the CMA decides to launch an investigation of a case which falls within its prioritisation principles, in relation to the review of undertakings and orders, 17 the CMA launches a review of the undertakings or orders and 8 9 A merger notice must meet the requirements under section 96(2) of the EA02. Where the CMA is satisfied that these requirements are met it must give notice to that effect to the person who submitted the merger notice (section 92(2A) of the EA02). Under section 34ZA(3) of the EA Under section 22(1) or 33(1) of the EA Under section 5 and 130A of the EA Under section 131(1) of the EA The super-complaint must satisfy the criteria in section 11(1) of the EA Under section 25 of the CA98, the CMA may use its formal investigation powers where it has reasonable grounds for suspecting that competition law has been breached. 15 Under section 192(1) of the EA Under the relevant consumer protection legislation. 7 CMA6

11 3.4 In regulatory reference and appeal cases the CMA s involvement in the case will be on a formal footing when the reference or appeal is made. Similarly with market references, referred by a regulator or minister, the CMA s formal involvement commences when the reference is made. On other occasions the CMA may work with concurrent regulators on a pre-launch or market study prior to the market reference being made. 3.5 The CMA will, usually inform the parties directly involved of the decision to formally open a case (see paragraph 3.7). This may be done during the course of otherwise regular contact between the case team and the parties directly involved, through a notice to the notifying parties in Phase 1 mergers and market studies, through a Phase 2 opening letter 19 in Phase 2 merger inquiries and market investigations, or through a case initiation letter in CA98 investigations and civil consumer enforcement actions. However, it will not be appropriate to inform the parties directly involved (as soon as a case is opened) when doing so may prejudice an investigation. For example, in CA98 and cartel investigations such information may prejudice the investigation by undermining the CMA s ability to conduct unannounced site visits or execute search warrants. In such cases, the parties directly involved will be informed of the formal case opening decision, and an announcement will be made, as soon as it is possible to do so without prejudicing the investigation. In cartel cases suspects are usually made aware of the investigation when they are arrested and/or when search warrants are executed. 3.6 In relation to cases involving many parties, for example market studies, market investigations or certain consumer cases, undertakings in the relevant sector will not always be informed individually of the CMA s decision before the case opening announcement is placed on Use of the webpages in such circumstances is an efficient means of communicating with the possibly large number of parties directly involved and may be the only means when not all such parties are identified by the CMA. 3.7 When the parties directly involved are informed of the formal case opening decision, the CMA will also provide them with the following information: a brief description of the case, the relevant legislation, the industry sector concerned and the CMA s reasons for starting a formal case. The level of 17 This does not apply to undertakings and orders under Part 8 of the EA02 or the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs). 18 Sections 92(1) and (2)(b) and (c) and 162(2)(b) and (c) of the EA Previously called First Day Letter. 8 CMA6

12 information may vary according to the circumstances of the case. It may not be appropriate to name the parties directly involved at this early stage of a case an indicative timetable showing the anticipated dates of key milestones, 20 and the contact details for the main CMA contacts for the case including the first point of contact for general queries and submission of information. 3.8 At this early stage or shortly afterwards, the CMA may be able to provide the parties directly involved with other information about the case, such as potential timescales for state of play meetings (for example, in Phase 1 merger cases and CA98 investigations) and the identity of the person or persons within the CMA who will be responsible for key decisions In all cases other than criminal cartel and criminal consumer investigations, 22 the CMA will place a case opening announcement on announcing its decision to formally begin a case except if to do so would prejudice the case or would otherwise be inappropriate. At the same time as or following the public announcement of a case opening, the CMA will also publish, if and as soon as reasonably practicable, the information referred to in paragraph The CMA will review the information provided on the status of the case and consider whether it is appropriate to update the information provided to the parties directly involved or the published information. For example, it will consider the need to do so in the light of changes to the indicative and any statutory timetable that may change as the case progresses. 20 At this stage in a case, there may be few key milestones for example, in merger cases, the only milestone at this stage will be the statutory deadline for a Phase 1 review. 21 Further information regarding the decision making procedures across the CMA can be found in the Mergers: Guidance on the CMA s jurisdiction and procedure (CMA2) (chapter 7), Market Studies and Market Investigations: Supplemental guidance on the CMA s approach (CMA3) (chapter 1), Competition Act 1998: Guidance on the CMA s investigation procedures in Competition Act 1998 cases (CMA8) (chapters 11 and 13) and Consumer Protection: Guidance on the CMA s approach to use of its consumer powers (CMA7) (for detail on CMA s approach to compliance and enforcement of consumer protection law, see chapter 5), referred to in paragraph As noted in footnote 4, where there are parallel civil cartel investigations, the approach taken in civil cartel investigations will be informed by the approach taken in the criminal case. 9 CMA6

13 Engagement with relevant parties and announcements during a case 3.11 An important aspect of ensuring that the CMA is transparent in its work is the way it engages with relevant parties over the course of a case. The timing and manner of engagement will vary depending on the type of work involved. 23 When considering the manner and timing of engagement, the CMA will have regard to the need to ensure due process for both the parties directly involved and other interested persons. The CMA will also have regard to the need to conduct investigations effectively and efficiently, and the need to reach properly reasoned decisions The CMA must, in some cases, take certain steps to share its provisional thinking or proposed decisions. For example: in CA98 investigations, if it proposes to make a decision, the CMA must issue a Statement of Objections (SO) to any party suspected of a breach of the CA98 24 in relation to a provisional decision to make a market investigation reference, the CMA must consult in such a manner as it considers practicable any persons on whose interest the decision is likely to have substantial impact and publish a notice of the proposal 25 in mergers and markets cases the CMA must consult affected parties on undertakings in lieu, 26 proposed final orders and undertakings, and publish its provisional findings and possible remedies in Phase 2 merger inquiries and market investigations, 27 and in civil consumer enforcement actions it must generally (but not always), before making an application for an enforcement order, engage in appropriate consultation with the party against whom the enforcement 28 order would be made. 23 Refer to the CMA guidance relating to mergers, markets, CA98, and consumer protection referred to in paragraph 1.4 for further guidance. 24 Rule 4 of the Competition and Markets Authority Competition Act 1998 Rules Section 131A(2) and 169(6)(a)(i) of the EA Sections 90 and Schedule 10 in respect of mergers and 155(1) of the EA02 (the CMA must publish a notice of the proposed undertakings in relation to market studies). 27 Section 104(1) and (2) of the EA Section 214(1) of the EA CMA6

14 3.13 The CMA is not subject to a general obligation to disclose its thinking in advance of consulting on its provisional decisions. However, the CMA will take a flexible approach to sharing its developing thinking and/or evidence with parties directly involved and (if appropriate) other interested persons prior to this, having regard to the desirability of ensuring that such parties are kept informed of key developments in the progress of their case. The CMA may share its developing thinking or evidence when doing so would be helpful to the progression of the case at appropriate stages, to verify the information it has received or when it is otherwise appropriate to do so. For example, the CMA may provide to the parties directly involved and other interested persons the results of research or surveys relevant to a market study or investigation; or disclose publicly parties key submissions in Phase 2 merger inquiries and market investigations. 29 The CMA may also share its developing thinking more widely through publishing the fact and/or details of such thinking, including on This includes an announcement on the issuing of an SO in CA98 investigations, on making an application for an enforcement order in civil consumer enforcement actions and on a decision to prosecute in a criminal investigation in appropriate cases The CMA will seek to ensure that the parties directly involved are aware of the decision making procedures which apply to their case, and the identity of the person or persons within the CMA who will be responsible for key decisions during the course of the case. Other interested persons are also able to contact the CMA to share their views. The CMA may also itself contact other parties to request information or seek their views on the case, where doing so would assist the CMA in exercising its functions. Case closure announcements and decisions 3.15 Publication of case closure announcements and decisions is a means of enhancing the visibility of the CMA s completed work, and of widening its impact, as well as enabling interested persons to hold the CMA to account On completing a case in relation to which a formal case opening announcement has been made, the CMA will publish the outcome on and usually issue a press notice with a link to the relevant 29 Further detail on the CMA s approach to disclosure in such inquiries or investigations may be found in Chairman s Guidance on Disclosure of Information in Merger Inquiries, Market Investigations and Reviews of Undertakings and Orders accepted or made under the Enterprise Act 2002 and Fair Trading Act 1973 (CC7 (revised)). 11 CMA6

15 pages on The potential outcomes that will be announced include: in Phase 1 merger cases, a clearance decision, a Found Not to Qualify Notice or the CMA deciding to make a merger reference or accept undertakings in lieu of a reference 30 in Phase 2 merger case, a no Substantial Lessening of Competition (SLC) decision, an SLC with or without remedies (including a prohibition) or cancellation of reference decision 31 in Phase 1 markets cases (that is, market studies), the CMA deciding not to make a market reference, to make a market reference or to accept undertakings in lieu of a reference 32 in Phase 2 markets cases, a no Adverse Effects on Competition (AEC) finding, an AEC finding with or without remedies 33 in relation to super-complaints, a response stating what action, if any, it proposes to take in response 34 in CA98 investigations, where the CMA s investigation is resolved through closing an investigation on administrative priorities, issuing a noninfringement decision, a decision that there are no grounds for action by the CMA, by accepting commitments from a business about their future conduct, or a final decision that particular conduct amounts to an infringement of the CA98 35 in criminal investigations, the outcome of a prosecution or a decision to close an investigation Made under sections 22(2), 33(2) and 73 of the EA02. Publicity requirements in respect of these decisions are in section 107(1) of the EA Section 37(1) of the EA Made under sections 131(1) and 154(2) of the EA02. Publicity requirements in respect of these decisions are in section 172(1) of the EA Section 136(1) of the EA Section 11 of the EA Sections 31(2), 31A and 31B. 36 Sections 188, 188A, 188B and 192(1) of the EA CMA6

16 in consumer enforcement actions, the outcome of a court action (with a link to the decision where possible), the successful negotiation of undertakings, a conclusion that there is insufficient evidence to continue an investigation, or a case closure decision on prioritisation grounds 37 in reviews of undertakings and orders, 38 a decision to vary, release, revoke or continue to enforce an undertaking or order, 39 and in regulatory references and appeals, the final decision on the reference or 40 appeal The level of detail published will reflect the CMA s statutory requirements and depend on the nature of the outcome, while also having regard to the CMA s transparency aims and the need to protect confidential information. In cases where a detailed decision has been issued, the CMA will publish a nonconfidential version of the decision on For those cases in relation to which a formal case opening announcement has been made, if the CMA decides to close a case on the basis of prioritisation grounds, the CMA will explain why this is the case. Notice of announcements 3.18 The CMA will in the majority of cases give the parties directly involved such advance notice as it considers fair and sufficient before making any public announcements, either during or at the end of the case. The CMA will aim to balance an open approach with the need to ensure the orderly announcement of full information It will in particular be mindful of the risk of leakage of information shared on a confidential basis with parties in advance of the CMA s public announcement. Such leakage may result in selective and/or misleading reporting in the press. 37 Sections 215(1), 219(2) and 220(2) and (3) of the EA02 and other relevant consumer protection legislation. 38 This does not apply to undertakings and orders under Part 8 of the EA02 or the UTCCRs. 39 Sections 82(2), 84(3)(b), 92(2), 159(4) and (5), 161(4)(b) and 162 of the EA Under relevant sectoral legislation. See Schedule 6 of the ERRA13 for more detail as to the amended form of the relevant provisions of sectoral regulation concerning regulatory appeals and references. 13 CMA6

17 3.20 The points below are a general guide. It may be the case that the particular complexities of the issue the CMA is dealing with mean that it departs from its standard practice. Market and non-market sensitive announcements 3.21 Where there are no market or other sensitivities about the fact or date of the announcement, the CMA will be open about the date and will generally inform media organisations of this before the date. The CMA will inform the parties directly involved in advance of informing the media. As a general rule, in nonmarket-sensitive announcements, the CMA aims to give the parties directly involved advance sight of the content of the CMA s announcement, in confidence, unless there is a compelling reason not to do so. However, the CMA will not, as a matter of course, discuss the text of press releases with parties in advance of issue When making a market-sensitive announcement, the CMA will, when appropriate, apply the Financial Conduct Authority s (FCA) Guidelines for the control and release of price sensitive information by Industry Regulators (originally published by the Financial Services Authority (FSA)) Where the CMA considers an announcement to be market-sensitive, it will: aim to make the announcement before relevant financial markets open and generally at 7am on the date of issue, except in Phase 1 mergers cases and in other exceptional circumstances (for example because of information leaking to the media or where legal proceedings are concerned) when the announcement date is not already in the public domain, the CMA will advise those directly affected of the announcement the evening before issue once relevant financial markets have closed this might be out of hours, in which event the CMA will have requested out of hours contact details in advance, and typically, including where there are multiple parties, the CMA will provide those directly involved with a confidential text of the press release and any document which is to be published alongside the press release at least one hour in advance of issue. Dealing with the media when making an announcement 3.24 For non-market-sensitive announcements, the CMA may sometimes brief the media in advance of the making a public announcement under an agreed 14 CMA6

18 embargo. When this happens the parties and other relevant stakeholders such as trade bodies will be notified of the embargo. On occasion this may involve spokespeople giving interviews to both broadcast and print media in advance under an embargo When making a market-sensitive announcement, the CMA never discusses the content with the media beforehand. The CMA may confirm that an announcement will take place on a certain day, at a certain time, and in some cases the CMA will agree in advance to interview requests for broadcast media Where the CMA statement is not known about in advance by the media due to market sensitivity issues, and where giving broadcasting interviews is appropriate, it will be the CMA s practice to have spokespeople available in the expectation of receiving interview requests shortly after an announcement Once a market-sensitive announcement has been made, the CMA will respond to media enquiries and, where appropriate, make spokespeople available for broadcast and print interviews. 15 CMA6

19 4. Obtaining and using information Requests for information 4.1 In respect of many of the CMA s functions the CMA has formal information gathering powers. 41 Such powers enable the CMA to request, for example, data, documents or forecasts, or require persons to attend as witnesses to give evidence. When it does not have, or does not use, formal powers, it relies upon the co-operation of parties and requests information on an informal, voluntary, basis. In practice, even where formal information gathering powers exist, the CMA will often request information on an informal basis. In either case, the CMA s approach as set out below is similar The CMA will make evidence based decisions. Therefore the availability to it of evidence and accurate information is a key factor affecting the performance of the CMA, as is the ability to conduct cases in a timely manner. The CMA fully recognises that when making information requests, this will have an impact on others, whether they are businesses, consumers or organisations. While formulating information requests, the CMA will therefore strive to avoid imposing unnecessary burdens on such persons while considering also the need for the CMA to operate efficiently and effectively. 4.3 The CMA seeks to address these aims by: considering the information that is required for the CMA s purposes preparing clear and focused information requests addressing requests to those best placed to provide the information discussing, where practicable and appropriate, the request with the intended recipient prior to sending a request, including discussion of the information held by the recipient and the form in which it is held 41 For example, formal powers are available in mergers (see chapter 7 of Mergers: Guidance on the CMA s jurisdiction and procedure (CMA2)), market cases (see Market Studies and Market Investigations: Supplemental guidance on the CMA s approach (CMA3): chapter 2 for market studies, chapter 3 for market investigation references and chapter 4 for remedies), CA98 investigations (see chapter 6 of the Competition Act 1998: Guidance on the CMA s investigation procedures in Competition Act 1998 cases (CMA8)), criminal cartel investigations, regulatory reference and appeal cases and in respect of various consumer enforcement cases (see Consumer Protection: Guidance on the CMA s approach to use of its consumer powers (CMA7), chapters 6 and 7 on investigatory powers). 42 See relevant tool specific guidance for more details in specific areas of work. 16 CMA6

20 considering the likely timescale in which the intended recipient will be able to provide the information, and considering how soon the CMA requires the information, having regard to the administrative or statutory timetable of the case and the impact a delay in receiving the information may have on the CMA s efficiency or quality of the CMA s work. 4.4 These factors may be relevant to many of the CMA s information requests, whether at the outset of a case or while the case is ongoing. The extent of engagement prior to making an information request may vary. For example, at the outset of a Phase 2 merger inquiry or market investigation the CMA will generally discuss with key parties the information they hold and the form in which they hold it. This will help to influence the preparation of the information questionnaires that are typically used in the early stage of such inquiries or investigations. 4.5 Where it is practicable and appropriate, the CMA will discuss a draft of its information requests with the intended recipients so as to enable requests to be prepared that reduce the burden on the recipients (for example, by helping to shape requests, having regard to how information is held by the relevant parties). However, this approach may not always be possible, for example when the case involves multiple parties, each holding the information differently; or where the CMA is under time pressure to meet a statutory (or administrative) deadline. Examples of when the CMA may not provide any advance notice of a proposed information request prior to exercising its formal investigation powers include when it is concerned that there is a risk that the information could be destroyed, urgency or because the request is for a small amount of information, making it inefficient to do so. The CMA will consider representations about the scope of any information request and deadline for compliance. 4.6 The CMA will seek to set a reasonable deadline for all information requests and where draft formal requests have been issued the final request will have considered any representations on the proposed deadline. 4.7 It is likely that during the course of a case the CMA will seek additional information. When doing so, the same factors identified in paragraphs 4.3 to 4.6 are again likely to be relevant. 4.8 Parties should make known any difficulties and discuss any queries raised by any information request including any difficulties in responding within the timeframe set out in a request by contacting the case team as soon as 17 CMA6

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